197 Pa. 347 | Pa. | 1900
Opinion by
The facts in this case can be very briefly stated. Mary A. VanGilder, the owner in her own right of the premises in dispute, as devisee of her father, Allan Harvey, conveyed the same, by a deed of general warranty, on July 30, 1870, to William Milnes, the ancestor of the appellees, but did not deliver possession to him. On September 9, 1871, Milnes conveyed them to John R. Hazelet, who, on October 4, 1871, served written notice on Mary A. VanGilder and Samuel G. VanGilder, her husband, that he had purchased the property and demanded possession, which was refused. After so serving notice on the VanGilders and their refusal upon demand, so made, to surrender possession of the premises to him, Hazelet, in a conversation with Milnes, was told by the latter that he could not deliver possession. Milnes, having been so unable to deliver possession to Hazelet, paid him $150 or $200 and took a reconveyance of the land by deed dated. January 16, 1872. From October 4, 1871, the date of the demand by Hazelet upon the VanGilders for the surrender of the premises to him, and their refusal, they remained in open and exclusive possession, paying the taxes regularly, and almost twenty-six years had elapsed from the time demand was so made until this suit was brought, on July 7, 1897. With these facts before it, the court below directed a verdict in favor of the plaintiffs, and the four assignments of error raise the question of the propriety of the instruction so given to the jury.
In directing a verdict for the plaintiffs, the learned trial judge gave no reason for doing so, and we can only conjecture, from the case as presented to us by counsel, that he must have felt either that the statute of limitations, relied upon by the defendants, could not be invoked by them, because they were the vendors in a deed of general warranty to their vendee, through whom the plaintiffs claimed title, or that, even if the statute extends to such a case, the evidence of adverse posses
Stronger proof being required when adverse possession against a grantee is relied upon by a grantor with a warranty than from a stranger, was the evidence of appellants sufficient to justify a finding in their favor? Their possession of the premises, according to the testimony, had been, for more than twenty-one years before the institution of this suit, actual, continued, visible, notorious and distinct, and, judged by what we have said, adverse and hostile to the title of the appellees. The possession was in conflict with the deed to the ancestor of the appellees, and hostility was asserted almost from the inception of the title claimed under it. If the possession was such, the plaintiffs had no right to oust the defendants. How is it to be determined whether the possession was adverse and hostile ? The answer can be found in the words of our Brother McCollum, in Connor v. Bell, supra, and the authorities there referred to. “Was such continued possession of a portion of the lot conveyed by him sufficient, in the absence of any word or act indicative of a hostile claim, to defeat the title of his grantee ? This question is not a new one, and the negative answer returned to it by the learned court below is supported by our own decisions and the current of authority in this country. In vol. 1, page 247, note 4 of the Am. & Eng. Ency. of Law, it is said that ‘the mere possession of the vendor of lands is not adverse to his vendee.’ In Buckholder v. Sigler, 7 W. & S. 154, as in